(PC) Saylor v. Allison ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 BRYAN E. SAYLOR, 1:21-cv-01282-GSA-PC 12 Plaintiff, ORDER FOR CLERK OF COURT TO RANDOMLY ASSIGN A UNITED 13 vs. STATES DISTRICT JUDGE TO THIS CASE 14 ALLISON, et al., FINDINGS AND RECOMMENDATIONS, 15 Defendants. RECOMMENDING THAT PLAINTIFF’S IN FORMA PAUPERIS STATUS BE 16 REVOKED (ECF No. 2.) 17 OBJECTIONS, IF ANY, DUE IN 18 FOURTEEN (14) DAYS 19 20 I. FINDINGS 21 Bryan E. Saylor (“Plaintiff”) is a state prisoner proceeding pro se with this civil rights 22 action pursuant to 42 U.S.C. §1983. Plaintiff filed the Complaint commencing this action on 23 August 24, 2021. (ECF No. 1.) 24 On August 24, 2021, Plaintiff filed a motion to proceed in forma pauperis along with a 25 certified copy of his prison trust account statement pursuant to 28 U.S.C. § 1915, (ECF No. 2), 26 and on August 24, 2021, the court granted Plaintiff’s motion to proceed in forma pauperis, (ECF 27 No. 5). 28 1 It appears, from a review of Plaintiff’s trust account statement, that Plaintiff can afford 2 the costs of this action. Evidence shows that on August 23, 2021, the average monthly balance 3 in Plaintiff’s account during the past six months was $910.99, and the balance of Plaintiff’s 4 account was $1,371.20. (Id. at 2.) 5 The Court notes that some of the funds in Plaintiff’s account may be from “stimulus 6 checks.” (Id. at 3-4.). However, Plaintiff has not cited to any law, and the Court is not aware of 7 any, preventing “stimulus checks” from being included when determining whether a plaintiff can 8 afford to pay the filing fee. Additionally, other courts in this district have included the funds 9 when making the determination. See, e.g., Hammler v. Zydus Pharmacy, 2021 WL 3048380, at 10 *1-2 (E.D. Cal. July 20, 2021) (considering the plaintiff’s “economic impact payments” when 11 determining that the plaintiff was “financially able to pay the filing fee”); Corral v. California 12 Highway Patrol, 2021 WL 2268877, at *1 (E.D. Cal. June 3, 2021) (including the plaintiff’s 13 “pandemic stimulus payments” in determining that the “plaintiff has made an inadequate 14 showing of indigency”). 15 Therefore, Plaintiff’s in forma pauperis status should be revoked, the court’s order 16 granting Plaintiff leave to proceed in forma pauperis should be vacated, and Plaintiff should be 17 required to pay the statutory filing fee of $402.00 for this action in full within thirty days. 18 II. ORDER, RECOMMENDATIONS, AND CONCLUSION 19 A. Order 20 The Clerk of Court is HEREBY ORDERED to randomly assign a United States District 21 Judge to this case; and 22 B. Recommendations and Conclusion 23 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 24 1. Plaintiff’s in forma pauperis status be revoked; 25 2. The court’s order granting Plaintiff’s motion to proceed in forma pauperis, issued 26 on August 24, 2021, be VACATED; and 27 3. Plaintiff be required to pay the $402.00 filing fee for this action in full within 28 thirty days. 1 These findings and recommendations are submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 3 (14) days after the date of service of these findings and recommendations, Plaintiff may file 4 written objections with the court. Such a document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 6 objections within the specified time may waive the right to appeal the District Court’s order. 7 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 8 IT IS SO ORDERED. 9 10 Dated: September 24, 2021 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28